Why Parents Who Batter Win Custody

It took
six years for Genia Shockome to gather the courage to leave her
husband, Tim. He pushed her, kicked her and insulted her almost from
the moment they married in 1994, she says. She tried to start over with
their children when the family moved from Texas to Poughkeepsie, N.Y.
It didn't last long. Tim called her constantly at work and, after they
split up, pounded on her door and screamed obscenities, she alleged in
a complaint filed in 2001. Tim was charged with harassment. As part of
a plea deal, Tim agreed to a stay-away order—but denies ever abusing
her or the children. In custody hearings over the past six years, Tim
has insisted that he's been a good father, and argued that Genia's
allegations poisoned their children against him. The judge sided with
Tim. This summer he was granted full custody of the kids, now 11 and 9.
Genia was barred from contacting them.

Genia is
one of many parents nationwide who have lost custody due to a
controversial concept known as parental alienation. Under the theory,
children fear or reject one parent because they have been corrupted or
coached to lie by the other. Parental alienation is now the leading
defense for parents accused of abuse in custody cases, according to
domestic-violence advocates. And it's working. The few current studies
done on the subject consider only small samples. But according to one
2004 survey in Massachusetts by Harvard's Jay Silverman, 54 percent of
custody cases involving documented spousal abuse were decided in favor
of the alleged batterers. Parental alienation was used as an argument
in nearly every case.

This
year the National Council of Juvenile and Family Court Judges denounced
the theory as "junk science," and at least four states have passed
legislation to curtail its use in custody cases involving allegations
of domestic violence. "It's really been a cancer in the family courts,"
says Richard Ducote, an attorney in Pittsburgh who has represented
abuse victims in custody cases for 22 years. "It's made it really
difficult for parents to protect their kids. If you ask for protection,
you're deemed a vindictive, alienating parent."

It may
seem hard to fathom how a judge could award custody to a parent accused
of abuse. But battered spouses often don't file criminal charges—so no
judicial finding is made against their mates—and family-court judges
typically aren't trained to referee the complexities of abusive
relationships. (Although men are sometimes battered by their wives,
women are the victims in the majority of abuse cases.) Judges often
throw out documented evidence of spousal abuse, arguing that it is
irrelevant in a custody case. And experts say that family-court judges
often look favorably on the alleged abuser because he seems more
willing to share custody than the accuser—who is hellbent on keeping
the father away from the child. According to a survey by Geraldine
Stahly, a psychology professor at California State University at San
Bernardino, attorneys will caution battered spouses against reporting
abuse in court so they don't lose their children. (Stahly and other
academics say the parental-alienation argument has more legitimacy in
custody disputes that don't involve charges of abuse.)

Parental-alienation
syndrome was first introduced by child psychiatrist Richard Gardner in
the 1980s. Fathers-rights groups picked up on the idea and began trying
it out in court. These groups condemn abusers. But Dan Hogan, executive
director of Fathers & Families, a nonprofit group that advocates
for joint custody, argues that all too often the accusers lie in order
to win custody of their kids.

There's
a small but growing movement to ban parental alienation in custody
cases, sparked by embattled parents bonding online. They've linked with
lawyers and advocates for battered spouses across the country. At least
four states, including California, have laws protecting parents who
make good-faith abuse allegations. Others may soon follow their lead.
Greg Jacob, an attorney who takes cases for abused parents pro bono, is
drafting legislation to shop to Virginia and Maryland next month.
Meanwhile, parents like Genia keep fighting. "It's so hard, having my
children lost," she says, her voice breaking. "This was my life—my
children."